Hensley v. Petermann Ltd.

• Decision Date: 05 November 2018
• Docket Number: Case No. 1:17-cv-190
• Parties: LAURIE ANN HENSLEY, Plaintiff, v. PETERMANN LTD., et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

LAURIE ANN HENSLEY, Plaintiff,
v.
PETERMANN LTD., et al., Defendants.

Case No. 1:17-cv-190

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO WESTERN DIVISION

November 5, 2018

Judge Susan J. Dlott

ORDER GRANTING DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT

This matter is before the Court on Motions for Summary Judgment by Defendant Great Oaks Education Foundation (Doc. 28) and Defendant Petermann LTD (Doc. 40). Appropriate responses and replies have been filed (Docs. 33, 34, 43, 44, 47). For the reasons that follow, the Defendants' Motions for Summary Judgment will be GRANTED.

I. BACKGROUND

A. Facts¹

Plaintiff Laurie Ann Hensley began working as a substitute school bus driver for Defendant Petermann Ltd. ("Petermann") assigned to the Monroe School District in 2000. Defendant Great Oaks Education Foundation ("Great Oaks") provides career training and economic development services at four campuses, including Scarlet Oaks. Great Oaks contracted with Petermann to provide school bus drivers to transport students to daily classes as well as field trips and other extra-curricular activities. Pursuant to the contract between Great Oaks and Petermann, "Drivers, upon request, will perform light custodial/cafeteria food service

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duties while they are waiting to transport students to or from a particular location; provided that these duties do not conflict with the transportation needs of . . . the students." (Agreement, Doc. 26-2 at PageID 540.)

In 2003, Hensley suffered a serious, non-work-related back injury. She returned to work in August, 2003, but she was medically prevented from lifting more than 40 pounds. (Hensley Dep., Doc. 22 at PageID 168.) Petermann accommodated Hensley's restriction. (Id. at PageID 174.)

In 2007, Hensley injured her back attempting to secure a student's wheelchair inside the bus. (Id. at PageID 180-181.) After this injury, doctors imposed a 10-pound lifting restriction. (Id. at PageID 184.) Again, Petermann honored Hensley's restriction. (Id. at PageID 186.)

In 2009, Hensley successfully bid on an open route at Great Oaks because it offered more work hours. (Id. at PageID 191.) She worked nine hours per day and was paid for a tenth hour of travel time five days per week. (Id. at PageID 195.)

Upon returning from Christmas break in 2010, Hensley and other Petermann drivers assigned to Great Oaks were told they would now be required to assist with light custodial work during the day when they were not driving. (Id. at PageID 198-99.) Hensley reported to the Instructional Resource Center ("IRC")—an administrative office building—where she would spot sweep floors, wipe tables in the employee break room, and stock the ladies' room with paper products. (Id. at PageID 202, 205-06.) She performed these tasks without incident for six years.

However, in 2016, Hensley's work assignment changed. Great Oaks closed the IRC, and Hensley learned she would be joining other Petermann drivers in the Scarlet Oaks school building. (Id. at PageID 214-15.) Hensley protested that the custodial duties her co-workers

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performed at the school building conflicted with her medical restrictions. (Id. at PageID 215-16.) At her supervisor's suggestion, Hensley informed the custodian at Scarlet Oaks about her back-related limitations. (Id. at PageID 216-17.)

Initially, Defendants assigned Hensley to work on the adult education side of the building where a regular custodian was on leave. To accommodate her medical restrictions, another custodian completed tasks requiring heavy lifting. (Id. at PageID 218-19.) However, after a few weeks, Hensley was reassigned to the high school side of the building, where she would be required to serve food, clean the cafeteria, and stack tables and chairs. (Id. at PageID 219-220.) She complained about the reassignment to supervisory employees at Great Oaks, but her Petermann supervisor, Ray Brock, instructed her to come to him regarding assignments and accommodations. (Id. at PageID 221.) Hensley told Brock that she physically could not perform the tasks required on the high school side of the building, and Brock replied that "he would take care of it." (Id. at PageID 222.) Brock requested another copy of her medical restrictions, and shortly after she provided it, Brock informed her that it had nothing to do with her bus driving abilities but she was no longer needed at Great Oaks. (Id. at PageID 223-25.)

With no other available choice, Hensley returned to working as a substitute bus driver in the Monroe School District. (Id. at PageID 226.) A few days later, a grades-two-through-twelve route came open in Monroe, and Hensley successfully bid on it. (Id. at PageID 227-28.) Since assuming the regular Monroe route, Hensley transports students to and from school and averages four to five field trips per week. (Id. at PageID 229.) With the exception of a five-month period in which she volunteered to drive school buses for Petermann in Chattanooga, Tennessee, Hensley continues to drive the 25-hours-per-week Monroe route plus field trips. (Id. at PageID 229-31.) Petermann pays her $20.57 per hour for routes and $14.68 per hour for field trips. (Id.

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at PageID 231.) Her medical restrictions are being accommodated. (Id. at PageID 242.) Even though a particular bus typically stays with the route rather than the driver, Petermann allowed Hensley to choose her bus for the Monroe route because it was "better for [her] back." (Id. at PageID 243-44.)

B. Procedural Posture

Hensley initiated this action alleging claims for violations of the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq. ("ADA"), intentional infliction of emotional distress, and violations of §§ 501 and 504 of the Rehabilitation Act of 1973. Defendant Great Oaks moved for summary judgment on the bases that it is not Hensley's employer and that Hensley was not discriminated against because of her disability (Doc. 28). Defendant Petermann moved for summary judgment contending that it accommodated Hensley's disability; she did not suffer an adverse employment action; she was not discriminated against because of her disability; and the Rehabilitation Act does not apply because Petermann does not receive federal funding (Doc. 40). Hensley opposes both motions.

II. SUMMARY JUDGMENT STANDARD

Federal Rule of Civil Procedure 56 governs motions for summary judgment. Summary judgment is appropriate if "there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The movant has the burden to show that no genuine issues of material fact are in dispute. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-87 (1986); Provenzano v. LCI Holdings, Inc., 663 F.3d 806, 811 (6th Cir. 2011). The movant may support a motion for summary judgment with affidavits or other proof or by exposing the lack of evidence on an issue for which the nonmoving party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317,

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322-24 (1986). In responding to a summary judgment motion, the nonmoving party may not rest upon the pleadings but must "present affirmative evidence in order to defeat a properly supported motion for summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986).

A court's task is not "to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Id. at 249. "[F]acts must be viewed in the light most favorable to the nonmoving party only if there is a 'genuine' dispute as to those facts." Scott v. Harris, 550 U.S. 372, 380 (2007) (emphasis added); see also E.E.O.C. v. Ford Motor Co., 782 F.3d 753, 760 (6th Cir. 2015) (en banc). A genuine issue for trial exists when there is sufficient "evidence on which the jury could reasonably find for the plaintiff." Anderson, 477 U.S. at 252; see also Shreve v. Franklin Cnty., Ohio, 743 F.3d 126, 132 (6th Cir. 2014) ("A dispute is 'genuine' only if based on evidence upon which a reasonable jury could return a verdict in favor of the non-moving party.") (emphasis in original) (citation omitted). Factual disputes that are irrelevant or unnecessary will not be counted." Anderson, 477 U.S. at 248. "The court need consider only the cited materials, but it may consider other materials in the record." Fed. R. Civ. P. 56(c)(3).

III. ANALYSIS

The Court will first address Plaintiff's federal claims and then address her state law claim.

A. Plaintiff's ADA Claim

The ADA, as amended, provides that a covered employer "shall [not] discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and

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other terms, conditions, and privileges of employment." 42 U.S.C. § 12112(a). "Discrimination" is defined to include "denying employment opportunities to a job applicant or employee who is an otherwise qualified individual with a disability, if such denial is based on the need of such covered entity to make reasonable accommodation to the physical or mental impairments of the employee or applicant." 42 U.S.C. § 12112(b)(5)(B).

In the absence of direct evidence of discrimination, the familiar burden-shifting scheme of McDonnell Douglas applies to disability discrimination claims. Barlia v. MWI Veterinary Supply, Inc., 721 F. App'x 439, 444 (6th Cir. 2018); Whitfield v. Tenn., 639 F.3d 253, 259 (6th Cir. 2011). A disability discrimination plaintiff must establish the following elements of a prima facie case:

(1) [H]e or she is disabled; (2) otherwise qualified for the position, with or without reasonable accommodation; (3) suffered an adverse employment decision; (4) the employer knew or had reason to know of the plaintiff's disability; and (5) the position remained open while the employer sought other applicants or the disabled individual was replaced.

Barlia, 721...